IN THE TRIAL CHAMBER

Before:
Judge Richard May, Presiding
Judge Mohamed Bennouna
Judge Patrick Robinson

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
19 March 1999

PROSECUTOR

v.

DARIO KORDIC
MARIO CERKEZ

______________________________________________

DECISION ON PROSECUTOR’S MOTION
ON TRIAL PROCEDURE

______________________________________________

The Office of the Prosecutor

Mr. Geoffrey Nice
Ms. Susan Somers
Mr. Patrick Lopez-Terres
Mr. Kenneth Scott

Defence Counsel

Mr. Mitko Naumovski, Mr. Leo Andreis, Mr. David F. Geneson, Mr. Turner T. Smith, Jr., and Ms. Ksenija Turkovic, for Dario Kordic
Mr. Bozidar Kovacic, for Mario Cerkez

 

THIS TRIAL CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("the International Tribunal"),

NOTING the "Prosecutor’s Motion on Trial Procedure" ("Motion"), filed by the Office of the Prosecutor ("the Prosecution") on 9 March 1999,

NOTING the oral arguments of the Parties heard during the Pre-Trial Conference on 11 March 1999,

NOTING that the Prosecution requests the Trial Chamber to order that witnesses should not be permitted to have any further contact with the Prosecution or the Defence once they have commenced their testimony;

NOTING the argument of Defence counsel ("the Defence") that such an order is unnecessary, particularly in the case of expert witnesses, and inappropriate in relation to the accused if they should choose to testify,

NOTING such an order as requested by the Prosecution has been issued in two other cases: Prosecutor v. Jelesic (IT-95-10-T) and Prosecutor v. Kupreskic et al. (IT-95-16-T),

NOTING that although there is nothing in the Statute or the Rules of Procedure and Evidence ("the Rules") to address this matter specifically, Rule 90 (G) states that the Trial Chamber "shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to (i) make the interrogation and presentation effective for the ascertainment of the truth; S . . . C",

NOTING further that Rule 89 (B) provides that "SiCn cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law",

CONSIDERING that a witness, either for the Prosecution or Defence, once he or she has taken the Solemn Declaration pursuant to Rule 90 (B) of the Rules, is a witness of truth before the International Tribunal and, inasmuch as he or she is required to contribute to the establishment of the truth, not strictly a witness for either Party,

CONSIDERING that permitting either Party to communicate with a witness after he or she has commenced his or her testimony may lead both witness and Party, albeit unwittingly, to discuss the content of the testimony already given and thereby to influence or affect the witness’s further testimony in ways which are not consonant with the spirit of the Statute and Rules of the International Tribunal,

CONSIDERING that the Victims and Witness Section, established pursuant to Article 22 of the Statute and Rule 34 of the Rules of Procedure and Evidence, is mandated to assist and accompany witnesses during their stay in The Hague, and to manage the practical aspects of their appearance before the International Tribunal, and this fact obviates the need for the Prosecution or the Defence to be in communication with a witness during his or her testimony in order, among other things, to provide him or her with psychological or moral support,

CONSIDERING that this Order shall also be applicable to any accused who chooses to testify,

CONSIDERING if a Party wishes to communicate with a witness on the content of their testimony, it should either seek leave of the Trial Chamber, or inform the other Party, who could raise an objection before the Trial Chamber,

CONSIDERING that there may be situations in which a witness wishes proprio motu to communicate certain information to the Prosecution or the Defence once the witness has begun testifying,

CONSIDERING that in such a case, the witness should contact the Victim and Witnesses Section, who will notify the relevant Party; that Party must then either seek the leave of the Trial Chamber to communicate with the witness, or inform the other Party, who could raise an objection before the Trial Chamber,

NOTING that the Prosecution also requests the Trial Chamber to order that where an accused is to give evidence, he must do so at the commencement of the Defence case, unless ordered otherwise by the Trial Chamber,

NOTING that the Prosecution argues that this procedure would save time and "eradicate the opportunity for the accused to tailor his evidence in accordance with the evidence of other Defence witnesses", and that this rule is applied in several civil as well as common law jurisdictions,

NOTING the Defence submission that the accused should be allowed to make an informed decision on whether and when to testify, in the light of the evidence presented at trial,

NOTING that although Article 21, paragraph 4 (g), protects an accused from being compelled to testify, the Statute and the Rules of the International Tribunal are silent on when during the proceedings the accused is to testify, should he choose to do so,

CONSIDERING however, that it has been the practice of the International Tribunal to allow those accused who choose to testify to determine when to do so,

NOTING that the Prosecution further requests a ruling for cross-examination of witnesses to focus on matters in dispute, and that matters not challenged in cross-examination should be regarded as not in dispute, and that all matters which a Party seeks to rely on in support of its case must be raised during cross-examination of witnesses who can then deal with these matters,

NOTING that the Defence submits that the conduct of cross-examination should not be guided by such a rule but by the discretion of the Trial Chamber,

NOTING Rule 90 (H), which provides that "ScCross-examination shall be limited to the subject-matter of the direct examination and matters affecting the credibility of the witness. The Trial Chamber may, in the exercise of its discretion, permit enquiry into additional matters as if on direct examination",

CONSIDERING that Rule 90 (H) does not provide for such a rule in relation to cross-examination as requested by the Prosecution,

CONSIDERING therefore, that the request must be refused, but that the matter remains within the discretion of the Trial Chamber,

NOTING that the Prosecution finally requests the Trial Chamber to order that examination-in-chief should be conducted with questions that do not lead the witness or suggest an answer, except in respect of background and non-contested matters,

CONSIDERING that it is the practice of the International Tribunal not to allow leading questions on matters in dispute, and that there is no need for a further order,

PURSUANT to Rules 54, 89 (B), 90 (G) and (H) of the Rules of Procedure and Evidence,

HEREBY

(1) ORDERS that

    1. Once a witness, including an accused, has made the Solemn Declaration provided for in Rule 90 (B) and commenced testifying, the Prosecution and Defence must not communicate with the witness on the content of the witness’s testimony except with leave of the Trial Chamber, or by informing the other Party, who could raise an objection before the Trial Chamber.
    2. If a witness wishes to contact the Party who called him or her, he or she shall either inform the staff of the Victims and Witnesses Section who will then report the matter to the relevant Party, or contact the Party directly. That Party may then apply to the Trial Chamber for leave to communicate with the witness, or inform the other Party, who could raise an objection before the Trial Chamber.

(2) DISMISSES the remainder of the Motion.

 

Done in English and French, the English text being authoritative.

_____________________________

Richard May
Presiding Judge

Dated this nineteenth day of March 1999
At The Hague
The Netherlands

[Seal of the Tribunal]